Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs

[2023] FedCFamC2G 138

Federal Circuit and Family Court of Australia

(DIVISION 2)

Balakrishnan v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 138  

File number(s):

MLG 2974 of 2018

Judgment of:

JUDGE GIVEN

Date of judgment:

23 February 2023

Catchwords:

PRACTICE AND PROCEDURE – Two adjournments sought without proper explanation – where all parties in breach of Court ordered timetable for preparation of hearing – Court will not simply rubber-stamp consent orders – overarching purpose – potential personal costs orders

Legislation:

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 190, 191

Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) rr 6.01, 9.01, 13.04, 22.06

Division:

Division 2 General Federal Law

Number of paragraphs:

51

Date of hearing:

8 February 2023

Place: 

Sydney

Counsel for the Applicant: 

Mr Perkins

Solicitor for the Applicant: 

Fairfields Lawyers

Solicitor for the Respondents: 

Mr Daly of Mills Oakley

ORDERS

MLG 2974 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MOORTHY BALAKRISHNAN
Applicant

AND:

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent

order made by:	JUDGE GIVEN
DATE OF ORDER:	8 February 2023

THE COURT ORDERS THAT:

1.The proceedings are adjourned until 10.15am commencing on 20 April 2023 before Judge Given for final hearing, in person.

2.The applicant must file and serve any amended application and any Affidavit evidence on or by 3 March 2023.

3.The first respondent must file and serve any Affidavit evidence on or by 24 March 2023

4.The applicant must file and serve a written outline of submissions (not exceeding 10 pages) and a list of authorities 21 days before the hearing referred to in order 1, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.

5.The first respondent must file and serve a written outline of submissions (not exceeding 10 pages) and a list of authorities 14 days before the hearing referred to in order 1, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.

6.The parties are to provide a joint electronic bundle of authorities to the Court, 3 days before the hearing referred to in order 1.

7.The parties are granted liberty to restore on 2 days’ notice.

8.The question of costs of and incidental to:

(a) the Application in a Proceeding filed for the applicant on 2 February 2023; and

(b) today’s adjournment;

including any question arising in respect of a costs order to be made pursuant to r 22.06 of the Federal Circuit Court and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (Rules), is reserved to the final hearing.

9.Any party or other person who wishes to make submissions as to costs must file and serve any evidence and written submissions (the latter not exceeding 5 pages) on costs 7 days before the hearing referred to in order 1, and provide a version of same in Word format by email to the Chambers of Judge Given on the date of filing.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

EX TEMPORE REASONS FOR JUDGMENT
(revised from transcript)

JUDGE GIVEN:

1. By an application to show cause filed with this Court on 4 October 2018, the applicant sought judicial review of the Administrative Appeals Tribunal (Tribunal) affirming a decision of a delegate of the first respondent (delegate) which refused to grant him a Student (Temporary) (Class TU) visa (visa). 

2. At the time the proceedings were commenced, the applicant was unrepresented.  The grounds of the application were in a narrative form but relevantly (at [2] and [3]) provided as follows:

   2. Application was made to the Tribunal for merit review of this matter. All required information was provided to the Tribunal to decide on this matter. I also advised to the tribunal that I would like to a hearing should the need arises and did not give consent to decide on my application to be decided by Tribunal without a hearing.

   3. However, AAT member decided on my application without offering me a hearing. I have had rights to the hearing at the tribunal. I did not consent to the negative decision to be made without a hearing.

3. On 4 June 2020, the first respondent’s solicitors filed a Court Book without having been directed to do so (because there had not yet been a first Court date directions hearing).  The Court Book was served on the applicant at his (then) address for service on 5 June 2020. 

4. On 9 June 2020, the applicant’s present solicitor filed a Notice of Address for Service which had the effect of appointing him as the applicant’s legal representative under r 9.01 of the Federal Circuit and Family Court of Australia (Division 2) General Federal Law Rules 2021 (Cth) (Rules). By that Notice of Address for Service, the applicant’s solicitor provided a particular email address as being an address for service for the purposes of r 6.01(5) of the Rules. 

5. On 9 June 2020, the solicitors for the respondent sent an email to the Court copying the applicant’s solicitor.  That email attached prepared consent orders which had been post-dated 10 June 2020 and signed by the respective solicitors for the applicant and the first respondent.  It should go without saying that legal practitioners should not post-date court documents.  On 12 June 2020, a Registrar of this Court made orders by consent. 

6. Orders 2 and 3 made on 12 June 2020 were as follows:

   2. Twenty-eight days before the hearing, the applicant file and serve:

   a) any amended application with proper particulars of the grounds of the

   application;

   b) a supplementary court book, if any; and

   c) written submissions.

   3. Fourteen days before the hearing, the first respondent file and serve written

   submissions.

   (self-executing order)

7. The matter remained in the central migration docket until when, on 12 May 2022, it was docketed to Judge Ladhams and listed by her Honour for hearing on 23 November 2022.  An email was sent to the parties on 12 May 2022 from the Associate to Judge Ladhams which notified them of the hearing date.  In respect of the applicant, that email was sent to his solicitors’ email address. 

8. By reference to the self-executing order, the aforementioned listing had the following consequence:

   (a)any amended application, supplementary court book and written submissions were due to be filed and served by the applicant on 25 October 2022; and

   (b)the first respondent’s written submissions were due to be filed and served on 8 November 2022. 

9. Neither party complied with those deadlines in time or at all. 

10. Instead, on 10 November 2022, the applicant’s solicitor wrote to the Chambers of Judge Ladhams in the following terms:

    We refer to the above matter and confirm that we act on behalf of the above-named Applicant. We respectfully confirm that the Applicant and Counsel representing the Applicant were notified of attending the Judicial Review hearing scheduled for Wednesday, 23 November 2022, at 2:00 pm (AEDT) via video conference.

    Counsel for the Applicant wishes to file submissions to duly present the Applicant's case. In this regard, we respectfully move that Your Honour's Court grant the Applicant and Counsel an adjournment to afford Counsel reasonable time to finalise submissions. We further bring to your honour's attention that the Respondent's representative has been duly informed of the above request for an adjournment.

    We regret the inconvenience caused to Your Honour's Court and seek your kind consideration of our request.

11. What the parties were unaware of at that time the applicant’s solicitor sent the above email was that, due to the unavailability of Judge Ladhams to hear the matter on 23 November 2022, steps were already underway to re-docket the matter to me.  It was in those circumstances that her Honour’s Associate responded to the parties and informed them that the 23 November 2022 hearing fixture had been vacated.  Given that there was no explanation as to why the applicant had not complied with the timetable for preparation of the matter in the 6 months since being notified of the listing, it should not be assumed that the Court would otherwise have granted the adjournment absent the need for the matter to be re-docketed.

12. On 21 November 2022, my Associate wrote to the parties (including to the applicant’s solicitor at his email address) to notify them that the matter was now listed before me at 2.15pm on 8 February 2023.  There was no reply from either party to suggest this date was unfeasible.

13. Again, by reference to the self-executing order, that listing had the following consequence:

    (a)any amended application, supplementary court book and written submissions were due to be filed and served by the applicant on or by 11 January 2023; and

    (b)the first respondent’s written submissions were due to be filed and served on or by 25 January 2023. 

14. Again, the parties did not comply with the timetable orders in time, or at all.

15. On 25 January 2023, being the date upon which the first respondent’s written submissions were due to the Court, and 14 days after the date for the applicant’s documents to be filed had already passed, the Court’s Registry received the following email (even though the parties had already received correspondence from my Chambers) from a staff member in the office of the applicant’s solicitor:

    We refer to the above matter, which is listed for hearing before Registrar Given on 08 February 2023 at 2:15 pm.

    We attach the proposed signed consent orders for the Registrar’s consideration.

    We would be grateful if you could confirm whether the Registrar is minded to make the proposed orders by consent and vacate the listing on 08 February 2023.

    Further, we would also like to clarify if any relisted matter can continue to be heard via Microsoft Teams, as both parties are based in Melbourne.

    Should you wish to discuss the matter further, please do not hesitate to contact us.

    Thank you

16. The email attached proposed consent orders which were signed by the solicitors for the respective parties and were in the following terms:

    1. Order 1 of the orders of Judge Given dated 21 November 2022 be vacated.

    2. The matter be listed for hearing on the first available date after 13 March 2023 via Microsoft Teams.

    3. Costs be reserved.

17. My Chambers responded to the parties later that day, observing that the applicant’s solicitor has been on record since the filing of a Notice of Address for Service on 9 June 2020, yet there had been absolutely no explanation provided as to why an adjournment is sought.  In circumstances where the proceedings had been on foot for almost 5 years, the parties were informed that the matter remained listed.  The parties were informed that any further adjournment application should be made by an Application in a Proceeding, supported by evidence. 

18. On 2 February 2023, an Application in a Proceeding was filed for the applicant, together with an Affidavit affirmed by the applicant’s solicitor on 2 February 2023 (Affidavit), which was read today without objection.  The applicant’s solicitor was not required for cross-examination.  The Application in a Proceeding was made returnable at the time and date of the final hearing fixture.  At the hearing on 8 February 2023, the applicant was represented by Counsel and the first respondent was represented by a solicitor. 

19. The fact that the applicant’s solicitor was not required for cross-examination is somewhat remarkable given the piecemeal version of events set out in his Affidavit.  The Affidavit raises more questions than it answers in terms of the relevant chronology of defaults in this matter.   Counsel for the applicant was not able to assist the Court with further detail, stating that he had only come into the matter in November 2022.  Given that the Application in a Proceeding sought an adjournment and there was a history of defaults in the matter, the fact that Counsel was not himself retained as at the time of those defaults does not justify there being no proper explanation given at the hearing of the Application in a Proceeding.  Counsel was not before the Court as a witness to those defaults, but rather as the advocate for the applicant.  The explanations, if any, ought to have been given by the applicant and/or the applicant’s solicitor who has twice now been the author of correspondence to the Court seeking said adjournments. 

20. The content of the Affidavit can be summarised as follows.  The Affidavit partially fills some gaps in the above-mentioned chronology.  Where there are notable omissions, those will be set out also. 

21. Set out at [2] above are salient parts of the originating application in this matter. By those paragraphs the applicant clearly adverted to an issue. Namely, he said he was not invited to a hearing of the Tribunal, which is at odds with a document in the Court Book (CB 49 to 59) that records the applicant as having apparently consented to the Tribunal deciding the review without a hearing. The applicant was represented by a migration agent before the Tribunal. By the originating application the applicant expressed surprise at the fact that he was not invited to a Tribunal hearing. As will be detailed shortly, this is the factual essence of what is now said to potentially give rise to a jurisdictional error in the Tribunal’s decision. The significance of this content in the originating application is that, as at the time the applicant retained his present solicitor, the applicant had already raised the essence of an allegation by reference to those facts and the Court Book which had been served on him, and which was available to give to the solicitor. The applicant was represented by his solicitor by the time that the first Court date occurred.

22. There is nothing to explain why instructions were not sought from the applicant in relation to that allegation in 2020.  The evidence before the Court is that the applicant’s solicitor did not take instructions and grasp this issue as being salient, prior to November 2022.  The Registrar’s order made in June 2020 had the effect that there was an extant grant of leave from 12 June 2020, which only ended 28 days before any hearing.  An Amended Application could have been filed for the applicant at any time up to 11 January 2023.  Yet, even as at today’s hearing, no amended application has been filed for the applicant.

23. The Affidavit is silent as to when the applicant’s Counsel was retained, but Counsel indicated today from the Bar table that he was retained in November of 2022.  There is no explanation in the Affidavit as to why Counsel was not retained until well after the matter was listed for hearing and the date for the relevant documents for the applicant to be filed had already passed.  The applicant had, by reference to the hearing date listed in November 2022, more than six months in which to retain Counsel before the hearing listed before Judge Ladhams. 

24. There is also no explanation as to why the applicant did not comply with the orders of the Court and file requisite documents in late October 2022.  The Affidavit makes the point, at [3], that the applicant’s solicitor did not prepare the Court Book.  The significance of this is not clear. There was no difficulty in the first respondent having pre-emptively dealt with the filing of the Court Book.  It was inevitably to be prepared by the first respondent’s solicitors as is always ordered in this Court, which is in contrast to the standard practice in the Federal Court of Australia where the onus to file the Court Book shifts to the applicant’s solicitors or the appellant, if they are represented.  In this matter, the only consequence of the first respondent having prepared and filed the Court Book in advance was that the applicant had the Court Book earlier than usual, namely, before the first Court date.  I do not consider that the applicant’s solicitor not drafting the Court Book explains why subsequent timetables were not complied with.

25. The Affidavit says that a conference took place between the applicant’s Counsel and the applicant, and I assume the instructing solicitor on 14 November 2022.  It is unclear why, given the hearing had been listed since May of 2022 , a conference was arranged with Counsel nine days before the hearing, at a time when the applicant’s documents were already overdue by three weeks. 

26. Next, the Affidavit says at [4] that on 14 November 2022, another conference was arranged with Counsel for 11 January 2023.  It can be accepted that, as at 14 November 2022, the parties had not yet been informed that the matter would be listed before me in February.  However, that position changed when, seven days later, they received an email from my Associate with the listing notice.  Notwithstanding this, it appears said conference was not brought forward, notwithstanding that 11 January 2023 would be the very date upon which the documents referred to above would be due to the Court.  On any view of it, that was unfeasibly late. 

27. The Affidavit then says that it was only on 11 January 2023 that it became apparent that there was an issue in relation to the document in the Court Book described at [21] above. There is no explanation as to why these instructions were not given by the applicant in the two preceding years, nor sought by his solicitor in circumstances where the originating application raised the issue with tolerable clarity. The Affidavit says that, on 11 January 2023, the applicant’s solicitor requested files from the applicant’s previous migration agent, which they received the same day. There having been no delay it is open to infer that, had those files been requested sooner, they would have been received sooner.

28. The Affidavit then says, without explanation for the seven-day delay, that the applicant’s solicitor then contacted Counsel for the applicant on Wednesday 18 January 2023.  The Affidavit says that, on Friday 20 January 2023, the applicant’s solicitor contacted the solicitor for the first respondent to seek his consent to adjourn the matter.  There is no explanation as to why it then took the applicant’s solicitor these two additional days to telephone the solicitor for the first respondent.  There is also no explanation as to why it then took more than five additional days for the applicant’s solicitor to send proposed consent orders to the first respondent solicitor, which did not occur until Wednesday, 25 January 2023.

29. By the email to my Chambers on 1 February 2023, the applicant’s solicitor says that he was overseas until 24 January 2023.  Counsel for the applicant indicated to me from the Bar table today that this is because the applicant’s solicitor has offices overseas and he had travelled for work.  That may be so, but it is not a matter that is included in the Affidavit, notwithstanding the fact that the applicant’s solicitor thought that it was a relevant matter to include in correspondence to the Court, nor seemingly was this overseas work trip factored into the preparation of the matter, despite the fact that the parties knew from 21 November 2022 the matter was listed, and that the applicant’s documents would be due the day after the applicant’s solicitor returned from overseas.

1. Counsel for the applicant made a number of submissions from the Bar table about steps that had been taken to (he says) diligently prepare the matter so that it could proceed today.  Notwithstanding that fact, nothing has been filed.  I was later informed by Counsel for the applicant that despite this apparent flurry of diligent activity in January this year, the applicant’s documents are not sufficiently near completeness such that they could be filed within any particularly short space of time.  I was also told from the Bar table that Counsel for the applicant ceased working on the matter once consensus was reached with the first respondent’s solicitors to seek an adjournment.

2. This leads to the next issue, being the first respondent’s conduct.

3. There has been no evidence advanced for the first respondent as to why his solicitors entirely failed, on two separate occasions, to comply with the Court’s order by reference to the self-executing timetables which came into effect by the hearing date being initially listed by Judge Ladhams, and then later by me.  What was suggested from the Bar table by the first respondent’s solicitor was that, in circumstances where there were discussions taking place between he and the applicant’s solicitor, the first respondent’s documents were therefore not being prepared.  The solicitor said, from the Bar table, that this was “incredibly regrettable”.

4. Where an applicant does not avail themselves of a grant of leave to amend their application and fails to provide submissions, the first respondent should either address the grounds of the originating application in written submissions, or seek to be excused from the need to do so if there is some other relevant factor.  Any failure to take one of those courses in time, will result in the first respondent being in breach of the Court’s orders.  If a proposed amendment is forthcoming later, or the applicant files other documents out of time, then the first respondent is able to seek an order for any costs thrown away, as often happens in this Court.  A costs order of that kind, in those circumstances, is usually irresistible.

5. In this matter the first respondent did not seek in advance to be excused from compliance with the Court’s orders.  It was only at hearing, and after my exchanges with Counsel for the applicant in this regard, that the solicitor for the first respondent then sought to have his client excused from compliance.  To do so would have no practical effect other than to absolve the first respondent of a retrospective breach such that he is not in default.  I am disinclined to do so.  Such a request ought to have been made before the order was breached.  Next, it should be observed that the manner and method by which the adjournment was sought by the applicant and consented to by the first respondent was wholly unacceptable. 

6. It was submitted for the applicant that the Court ought to have acceded to the adjournment request because it had been consented to by the first respondent who is a model litigant.  The essence of this syllogism appears to be that because the first respondent has the obligation to conduct himself as a model litigant, any conduct undertaken by him is therefore taken to be conduct which is exemplary conduct or best practice and, as such, the Court should accede to the first respondent’s wishes.

7. The Court will not simply rubber-stamp orders at the whim of the parties whether they have an obligation as a model litigant, or otherwise.  Consensus between the parties as to the manner in which a matter should proceed is a relevant factor to the practice and procedure of the Court, but it is not the only consideration. 

8. Sections 190 and 191 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (Court Act) provide as follows:

   Section 190 Overarching purpose of civil practice and procedure provisions

   (1)  The overarching purpose of the civil practice and procedure provisions is to facilitate the just resolution of disputes:

   (a)  according to law; and

   (b)  as quickly, inexpensively and efficiently as possible.

   Note 1:      See also paragraphs 5(a) and (b).

   Note 2: The Federal Circuit and Family Court of Australia (Division 2) must give effect to principles in the Family Law Act 1975 when exercising jurisdiction in relation to proceedings under that Act.

   (2)  Without limiting subsection (1), the overarching purpose includes the following objectives:

   (a)  the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 2);

   (b)  the efficient use of the judicial and administrative resources available for the purposes of the Court;

   (c)  the efficient disposal of the Court's overall caseload;

   (d)  the disposal of all proceedings in a timely manner;

   (e)  the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

   (3)  The civil practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.

   (4)  The civil practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:

   (a)  the Rules of Court;

   (b)  any other provision made by or under this Act or any other Act with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 2).

   Section 191 Parties to act consistently with the overarching purpose

   (1)  The parties to a civil proceeding before the Federal Circuit and Family Court of Australia (Division 2) must conduct the proceeding (including negotiations for settlement of the dispute to which the proceeding relates) in a way that is consistent with the overarching purpose.

   (2)  A party's lawyer must, in the conduct of such a proceeding before the Federal Circuit and Family Court of Australia (Division 2) (including negotiations for settlement) on the party's behalf:

   (a)  take account of the duty imposed on the party by subsection (1); and

   (b)  assist the party to comply with the duty.

   (3)  The Federal Circuit and Family Court of Australia (Division 2) or a Judge may, for the purpose of enabling a party to comply with the duty imposed by subsection (1), require the party's lawyer to give the party an estimate of:

   (a)  the likely duration of the proceeding or part of the proceeding; and

   (b)  the likely amount of costs that the party will have to pay in connection with the proceeding or part of the proceeding, including:

   (i)  the costs that the lawyer will charge to the party; and

   (ii)  any other costs that the party will have to pay in the event that the party is unsuccessful in the proceeding or part of the proceeding.

   Note: Paragraph (b)--in relation to a family law or child support proceeding, the Federal Circuit and Family Court of Australia (Division 2) may make an order as to costs under section 149 of the Family Law Act 1975 if the Court is of the opinion that there are circumstances that justify it in doing so.

   (4)  In exercising the discretion to award costs in a civil proceeding, the Federal Circuit and Family Court of Australia (Division 2) or a Judge must take account of any failure to comply with the duty imposed by subsection (1) or (2).

   (5)  Without limiting the exercise of that discretion, the Federal Circuit and Family Court of Australia (Division 2) or a Judge may order a party's lawyer to bear costs personally.

   (6)  If the Federal Circuit and Family Court of Australia (Division 2) or a Judge orders a lawyer to bear costs personally because of a failure to comply with the duty imposed by subsection (2), the lawyer must not recover the costs from the lawyer's client.

9. On the material presently before me and having regard to the duty of parties to act in accordance with the overarching purpose set out above, I can see no basis upon which the first respondent’s solicitors could reasonably have consented to what was (by that stage) a second, unfounded adjournment request for the applicant other than that the first respondent was in breach of the Court’s orders also.  As such, it suited the first respondent for the matter to adjourn.  The corollary of such an adjournment would essentially vacate the self-executing order with which the first respondent had not complied.

10. The first respondent’s solicitors have a duty to the Court by reference to, among other things, s 191 of the Court Act, as does the applicant’s solicitor.

11. The applicant is in default pursuant to r 13.04(1)(a) and (e) of the Rules.  The first respondent is in default by reference to r 13.04(2)(a) and 13.04(2)(b)(iii) and (vii).  On any view of it, the hearing is not able to conveniently proceed today by reference to those defaults.  Such a situation should not occur again. 

12. The parties and their representatives have conducted themselves in this matter with a lack of courtesy, by reference to the correspondence which was sent by the applicant’s solicitor, and the general approach by which the Court was expected to simply accede to what was, at that stage, a wholly unsubstantiated adjournment request.  Further, there does not seem to have been diligence on the part of the parties to continue to prepare the matter for hearing from the material that is before me, despite the fact that the matter remained listed for hearing today, and that it was a final hearing. 

13. Counsel for the applicant made submissions urging the Court to exercise its discretion to adjourn.  That discretion is usurped in circumstances such as these.  The assumption by both parties appears to be that, if they did nothing, then the Court would be hamstrung and unable to proceed. 

14. Of course, in the foregoing circumstances and by reference to the various defaults by the parties, it would be open to the Court to simply dismiss the matter yet still potentially deny the first respondent any costs.  However, in my view, and having regard to the principles which underpin this discretion of the Court as to whether or not to adjourn, that would not be an appropriate course.  From everything I can presently discern, the applicant does not appear to be the cause of the defaults in this matter.  The applicant ought not be denied a hearing opportunity because the lawyers on both sides of his matter have conducted themselves in a manner which at this stage, can only be described as lackadaisical.  In my view, the matter should be properly prepared for hearing.  I am prepared to accede the adjournment request to enable this to occur.  Indeed, there seems little other choice by reason of the conduct of the lawyers. 

15. As I have already noted, it is apprehended that the ground/s of review will centre on the circumstances in which a document was advanced to the Tribunal to state that the applicant was content to waive his right to a hearing and have the matter determined on the papers.  Within this matrix is potentially an allegation of migration agent fraud.  Such a serious allegation will require probative evidence, potentially including expert evidence as to document authenticity and/or handwriting. 

16. Where practitioners have not conducted themselves with diligence, I would ordinarily impose a timetable of quite short duration, but it is in the interests of the applicant that he be able to furnish proper evidence and make good any allegation of fraud that he intends.  Accordingly, I will set a timetable which enables this to occur.  This has not been done to indulge the practitioners. In all the circumstances, at the present time, I am of the view that this matter should adjourn for the applicant’s benefit.  I will so order. 

17. I will also reserve costs in this matter.

18. While the applicant has technically been successful in obtaining the adjournment, I am not presently prepared either to make an order for costs in regards to the Application in a Proceeding. By reference to s 191(4) of the Court Act, in exercising the discretion to award costs in a civil proceeding, I am mandated to take into account any failure to comply with the duty imposed by s 191(1) or (2) of the Court Act. In this matter, it is difficult to discern to which of the parties’ lawyers, if any, an order under r 22.06 of the Rules might be properly directed. It may be both. It may be neither. It is premature to fully consider until the matter is finally heard, and said question can be addressed with the benefit of the full context of these proceedings, including how the matter is ultimately pleaded and prosecuted.

19. I will make an order which puts the relevant lawyers on notice for the purposes of r 22.06(5) of the Rules.  There has been a waste of the Court’s time and of a fixture which could have been allocated to another applicant as of November of last year.  To say that the Court is unimpressed by the conduct of these proceedings to date is an understatement.  However, and as noted earlier, that is not something which it appears should be visited upon the applicant.

20. For all the above reasons, the question of costs in respect of the Application in a Proceeding will be reserved, to be considered by reference to r 22.06 of the Rules.  As noted above, the Application in Proceeding seeks that the Court make a timetable which was previously agreed by the solicitors for the parties.  That timetable relies in part on the self-executing order.

21. By the application in a proceeding, the applicant sought to have the Court make the timetable which is set out at [16] above and which has the effect of continuing with the self-executing timetable in the June 2020 orders. As I discussed with the representatives at hearing, given the issue which seems to be central to the application now, it would not be appropriate to continue with that timetable, because it does not allow for the matter to be properly prepared. If migration agent fraud is to be alleged, then that should be specifically pleaded and clearly particularised by reference to evidence which is going to be prepared in particular for the applicant.

22. A timetable which envisages that the amended application be served in some weeks so that evidence can be prepared needs to allow for this.  Accordingly, a different regime to that proposed initially by the parties will need to be employed, and I will make orders that give effect to this.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Given.

Associate:

Dated:       24 February 2023